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Unofficial Opinion 2009-3

Unofficial Opinion 2009-3

August 11, 2009

To:

Speaker, Georgia House of Representatives

Re:

A lawyer/legislator may represent the legal interests of a Georgia company on matters in other states, including political consulting and the drafting of legislation. However, even where there may not be a per se conflict of interest, a lawyer/legislator must always vigilantly guard against such conflicts developing depending upon the facts and circumstances of each situation, especially where matters arise involving the lawyer/legislator’s own actions in the consideration of legislation within the General Assembly.

You have asked for my opinion on two separate questions related to activities that may be undertaken by a lawyer/legislator in Georgia. Initially you have asked whether a lawyer/legislator may provide legal representation to a Georgia company, including political consulting services and the drafting of legislation, on matters and issues arising in states other than Georgia. You have also asked whether the lawyer/legislator would have a conflict of interest should the same client company promote the passage of similar legislation in Georgia itself. To cure any potential conflict that might arise from the promotion of such legislation, you have proposed that the lawyer/legislator would have no financial interest in the proposed Georgia legislation and would abstain from all involvement in the debate and voting on the proposed legislation.

It is my opinion that a lawyer/legislator may represent the legal interests of a Georgia company on matters in other states, including political consulting and the drafting of legislation. However, even where there may not be a per se conflict of interest, a lawyer/legislator must always vigilantly guard against such conflicts developing depending upon the facts and circumstances of each situation, especially where matters arise involving the lawyer/legislator’s own actions in the consideration of legislation within the General Assembly.

While determining whether a conflict of interest exists is usually a fact-specific inquiry, there are some general principles in Georgia law that provide guidance on the issue. As I have previously noted:

Any analysis of “conflicts of interest” under Georgia law must begin with the Georgia Constitution and its provisions regarding the origin and structure of state government. The Constitution mandates that “[p]ublic officers are the trustees and servants of the people and are at all times amenable to them.” Ga. Const. Art. I, Sec. II, Para. I. The Supreme Court of Georgia has repeatedly recognized that this constitutional provision creates a special fiduciary duty of loyalty on behalf of public officers and employees and that duty should not be compromised by either divided loyalties or other conflicts of interest. Georgia Dep’t of Human Resources v. Sistrunk, 249 Ga. 543, 546 48 (1982), overruled in part, GeorgiaPorts Auth. v. Harris, 274 Ga. 146, 147 (2001). See also GeorgiaState Bd. of Pharmacy v. Lovvorn, 255 Ga. 259, 260 (1985); Ianicelli v. McNeely, 272 Ga. 234, 236 (2000). A public officer may not use this special trust to promote his or her own personal interests, regardless of how fair a contract may be, but must instead affirmatively avoid any conflicts of interest. Sistrunk, 249 Ga. at 547. (Footnotes omitted.)

2004 Op. Att’y Gen. 2004‑7. In concurrence with this constitutional mandate, the General Assembly has also noted:

It is essential to the proper operation of democratic government that public officials be independent and impartial, that governmental decisions and policy be made in the proper channels of the governmental structure, that public office not be used for private gain other than the remuneration provided by law, and there be public confidence in the integrity of government. The attainment of one or more of these ends is impaired whenever there exists a conflict between the private interests of an elected official or a government employee and his duties as such. The public interest, therefore, requires that the law protect against such conflicts of interest and establish appropriate ethical standards, with respect to the conduct of elected officials and government employees in situations where conflicts exist.

O.C.G.A. § 45-10-21(a).

However, both the Supreme Court of Georgia and the General Assembly itself have recognized that constitutional, statutory, and common law prohibitions against conflicts of interest must also be interpreted and tempered by “not unnecessarily or unreasonably [impeding] the recruitment and retention by the government of those men and women who are best qualified to serve it.” Georgia Ports Auth. v. Harris, 274 Ga. 146, 147 (2001) (quoting O.C.G.A. § 45-10-21(b)). Elected officials should not be denied the same economic opportunities available to other citizens, except where such actions would lead to conflicts with the public duties and responsibilities entrusted to the public official. Harris at 147.

All members of the General Assembly hold positions of trust and loyalty. This creates a fiduciary responsibility for them never to be placed in situations where they might have divided loyalties or where the interests of the State and its people would be compromised for personal benefit. Although the specific facts and circumstances of a particular case will always need to be examined to determine whether a conflict actually exists, the circumstances you have described are premised on the concept that all legal work that is being provided by the lawyer/legislator would be done outside of the State and without any involvement related to the member’s service in the General Assembly.

Provided that the facts and circumstances of the out-of-state employment are in fact totally separate from a lawyer/legislator’s service as a member of the General Assembly, it does not appear that such out-of-state employment would raise concerns regarding conflicts of interest. There is no indication that a lawyer/legislator in these circumstances would be placed in a position of choosing between obligations to a client and his or her fiduciary obligations as a Georgia public official.

The second question that you have raised is somewhat more problematic and does not necessarily lend itself to as definitive an answer as your first question. The same legal strictures outlined above continue to be applicable. The lawyer/legislator cannot, by virtue of his or her legal representation of a client, be placed in a situation where he or she has divided loyalties or there is any adverse impact on the official’s fiduciary duties.

The factual situation that you have described is that the lawyer/legislator’s client seeks to promote the passage of legislation in the General Assembly where the lawyer/legislator still serves. This legislation would be similar to legislation prepared or promoted by the lawyer/legislator outside of the State, who would now refrain from active involvement in further promoting that legislation here in Georgia by declining to participate in the debate or vote on the legislation.

On the surface, this situation would not appear to present any per se conflict of interest because of the lawyer/legislator removing himself or herself from all active involvement in the passage of the legislation. However, there are circumstances that could occur where the lawyer/legislator, even without such active involvement, could still impact that process. The general knowledge that such legislation was prepared by the lawyer/legislator elsewhere, even without a formal endorsement by him or her of the legislation in the General Assembly, would certainly be perceived as an endorsement of the legislation and consistent with the lawyer/legislator’s previous out-of-state employment.

Even so, I can identify no specific law which defines such actions as a per se conflict of interest. Legislators have the ability to introduce and promote what they believe are appropriate pieces of legislation. They must do so in accordance with the constitutional and statutory framework outlined in Georgia law, much of which has been discussed in previous opinions issued by this office. See, e.g.¸ 2004 Op. Att’y Gen. 2004-7, 1998 Op. Att’y Gen. 98-8, 1995 Op. Att’y Gen. U95-26, 1991 Op. Att’y Gen. U91-4.

Legislators must be also aware of the “Code of Ethics of Government Service,” which provides aspirational guidelines for any person in government service. O.C.G.A. § 45‑10‑1. “These tenets include the admonishment that a government official or employee should not engage in any business with the government which is inconsistent with the conscientious performance of his governmental duties and that such person should never use any information coming to him confidentially as a means for making a private profit. O.C.G.A. § 45‑10‑1, VII, VIII.” 2004 Op. Att’y Gen. 2004‑7.

Because the General Assembly, as a co-equal branch of state government, shares the same concerns over guarding against conflicts of interest and addressing ethical issues, the lawyer/legislator may wish to raise the proposed activities with the Joint Legislative Ethics Committee. See O.C.G.A. § 45-10-91. This legislative committee has the authority to issue, upon request of a member of the House or Senate, “written advisory opinions, based on a real or hypothetical set of circumstances” regarding whether there are ethical or conflicts issues raised by a particular question.

Therefore, it is my opinion that a lawyer/legislator may represent the legal interests of a Georgia company on matters in other states, including political consulting and the drafting of legislation. However, even where there may not be a per se conflict of interest, a lawyer/legislator must always vigilantly guard against such conflicts developing depending upon the facts and circumstances of each situation, especially where matters arise involving the lawyer/legislator’s own actions in the consideration of legislation within the General Assembly.